Blaylock v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JAMES BLAYLOCK,
Petitioner,
vs.
EARL HOUSER, Superintendent, Goose
Creek Correctional Center,
Respondent.
No. 3:20-cv-00191-JKS
ORDER OF DISMISSAL
On July 31, 2020, James Blaylock, a state prisoner proceeding pro se, filed a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2254 (“Petition”). Docket No. 1. Blaylock challenges
the 2015 judgment of conviction following his guilty plea entered by the Superior Court for the
State of Alaska, Case Number 3AN-13-13129CR, on the grounds that: 1) he received ineffective
assistance from plea counsel; 2) the prosecution threatened him into accepting the plea bargain;
3) he was deprived of his constitutional right to a speedy trial; and 4) he is unconstitutionally
confined and has been subjected to excessive sentencing. Id. at 5-10.
After reviewing the Petition and the state court dockets, this Court issued an Order to
Show Cause (“OSC”) on August 18, 2020, directing Blaylock to file a Response addressing the
facial untimeliness of the Petition and whether there are grounds for equitable tolling. Docket
No. 4. The OSC explained why the Petition was facially untimely and why the statutory tolling
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available did not render it timely. Id. at 2-3. The OSC laid out the equitable tolling doctrine and
expressly directed Blaylock to explain how the Petition is timely (if he so contends) and to
provide any available competent evidence to establish such timeliness. Id. at 4-6. Blaylock
responded to the OSC on August 31, 2020. Docket No. 5. In his Response, Blaylock did not
address the timeliness or tolling issues, and instead reiterated allegations already made in his
complaint.
The Court has considered the Petition, the record, and Blaylock’s Response and must
conclude that dismissal of this action with prejudice is warranted due to untimeliness. The Court
takes judicial notice1 that the state court record shows that Blaylock was convicted on April 3,
2015. See https://records.courts.alaska.gov/ (State v. Blaylock, 3AN-13-13129CR). The records
of the Alaska state courts indicate that Blaylock did not appeal his conviction. Because Blaylock
did not file a direct appeal, his conviction became final for purposes of 28 U.S.C.
§ 2244(d)(1)(A) 30 days after his conviction when, on May 4, 2015, the time for filing such
appeal expired. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006). See Jiminez v.
Quarterman, 555 U.S. 113, 119 (2009); Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003).
The one-year period under the AEDPA in which to file a federal petition for habeas relief thus
expired on May 4, 2016. It appears that, after his conviction became final, Blaylock did not
litigate any challenge to his conviction until July 19, 2020, when he attempted to file a petition
for hearing in the Alaska Supreme Court, which the Supreme Court refused to accept for filing
because Blaylock did not first appeal his conviction in the Alaska Court of Appeals. Docket No.
1-4. Because the July 2020 petition for hearing was filed more than four years after the deadline
for Blaylock to file a federal habeas petition had expired, it did not serve to restart the statute of
1 Judicial notice is the “court’s acceptance, for purposes of convenience and
without requiring a party’s proof, of a well-known and indisputable fact; the court’s power to
accept such a fact.” BLACK ’ S LAW DICTIONARY (10th ed. 2014); see also Headwaters Inc. v.
U.S. Forest Service, 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (“Materials from a proceeding in
another tribunal are appropriate for judicial notice.”); see also FED . R. EVID . 201.
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limitations. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that the one-year
habeas statute of limitations does not restart where that period ends before petitioner’s state
petition for post-conviction relief is filed). 2 It therefore appears that Blaylock’s Petition is
facially untimely. Because Blaylock has not provided any argument to the contrary, nor has he
alleged facts that would support the application of equitable tolling, his Petition must be
dismissed with prejudice as untimely. See Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001)
(“[W]hile the district court has the authority to raise the statute of limitations sua sponte and to
dismiss the petition on those grounds, that authority should only be exercised after the court
provides the petitioner with adequate notice and an opportunity to respond.”) (citations omitted).
IT IS THEREFORE ORDERED:
1. 	The Petition is DISMISSED WITH PREJUDICE for untimeliness.
2. 	All pending motions are DENIED as moot.
3. 	The Court declines to issue a certificate of appealability. See 28 U.S.C.
§ 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a certificate of
appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.’” (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003))). Any further
request for a Certificate of Appealability must be addressed to the Ninth Circuit
Court of Appeals. See FED . R. APP . P. 22(b); 9TH CIR . R. 22-1.
4. 	The Clerk of Court is directed to issue a judgment accordingly.
Dated at Anchorage, Alaska this 14th day of September, 2020.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
2 Moreover, the petition for hearing was not “properly filed” in state court and thus
would not have tolled the one-year AEDPA time period in any event. See Mardesich, 668 F.3d
at 1169.
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